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Application to set aside an ex parte conviction

In the Magistrates Court, a person can be found guilty of, and convicted of, a summary offence in her or his absence [see Criminal Procedure Act 1921 (SA) ss 62A, 62BA, 62C]. This can occur when a summons is served but the defendant fails to attend on the date specified on the summons, or where the person is bailed to attend the hearing but fails to attend. The prosecution obtains the court's permission to proceed ex parte (without the person being present). The court will then hear only the prosecution version and if the Magistrate considers the charge is made out, the court can make a finding of guilty and convict the defendant, and in some cases, impose a penalty.

However, a person convicted may apply to the Magistrates Court to set aside that conviction and if the application is granted the case is reconsidered as though the conviction and penalty were never imposed.

A form (available from the Magistrates Court Registry) must be completed and filed at the Court within fourteen days of receiving notice of the conviction [see Criminal Procedure Act 1921 (SA) s 76A(1(b)].

The Court can also set aside the conviction on it's own initiative [s 76A(1)(a)].

The case will then be listed before a magistrate who will decide whether it is appropriate in all the circumstances to set aside the conviction and have the matter re-heard. Applications made out of time may still be considered by the court in special circumstances.

A court will set aside a conviction or order if it is satisfied that:

  • the prosecution agrees; or
  • if the conviction or order was made in error;
  • or if it is in the interests of justice.

    [Criminal Procedure Act 1921 (SA) s 76A(3)].

Where a conviction or order is set aside the Court can either re-hear the matter immediately or adjourn the proceedings for to a hearing at another time [s 76A(4)].

Sentencing Purposes, Principles and Factors  :  Last Revised: Thu Apr 19th 2018
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